Conservation Officers: What is their authority to conduct searches?

[Bchunt]

Officers are using their broad powers of inspection for searches that may result in criminal proceedings. This is where they get away with it, and we as citizens, allow them to.

Courts have found that if you chose to participate in a regulated activity (ie hunting, fishing, trapping), you are allowed to be inspected while carrying out those activities. Not all charter rights apply if you choose to participate. A good example of how powers of inspectors that we are all familiar with is a health inspector at a restaurant. The restaurant cannot say no to the inspection because by choosing to participate in a regulated activity (serving food for money), they must accept government bodies inspecting their actions. That being said, a health inspector does not have the powers and authority of a peace officer. They can't arrest, and can't lay criminal charges.

Co officers on the other hand have the authority to inspect those who chose to participate in regulated activities (hunting fishing trapping), but then use the information gathered by the inspection for criminal law enforcement. This is the big no no that they aren't allowed to do (without some in between steps). Unfortunately, we let it happen all the time. DFO knows this is an issue, and has lost a significant court case in Saskatchewan over it, and it is why they have generally directed their officers not to participate in highwany road checks. DFO has viewed highway road checks as basically arbitrary detentions/unlawful searches. Courts have found that road checks on highways are allowed for two reasons only. To check for safe vehicle condition and operator impairment. All other purposes are considered arbitrary detention/unlawful searches. But that is a story for another day.

Lets run a scenario and see if I can make better sense that way. To keep the public highway aspect from mixing things up, let's keep this to logging roads and areas where fish and wildlife are normally found. Also, let's focus only on his powers under the federal fisheries act, provincial wildlife act and provincial firearms act. Lets not muddy the waters further with motor vehicle act/forestry and range act stuff

you are driving out of a logging road with a bare truck (empty). You have a canopy and back seat, but it's just you when you come to a co road check. Using his powers of inspection vested under the various acts, the co is allowed to ask you a version of this "are you transporting any fish, wildlife or firearms, or have you been doing any fishing or hunting today". Guess what, if you have chosen to participate in one of those regulated activities, you must answer truthfully. Fail to answer is obstruction of an officer.

if you have not done any of those things, and answer no, you should be free to leave. Now an overzealous officer might find some reason he wants to search further, and without some "reasonable suspicion" that you have been participating in a regulated activity, he is not allowed.

the crux of inspecting further is the reasonable suspicion that you have been participating in a regulated activity. How does that burden get achieved. It is all in what is visible, where you are, and how it is articulated. Some things are easy - fishing rod visible? Prepare to get inspected. Moose hair and blood on tailgate with a tarped object, you are going to be inspected. Does a cooler in the back make reasonable suspicion - I would argue no, coolers carry a lot of things and just having a cooler does not mean I have participated in a regulated activity. In fact, that is what the DFO case in Saskatchewan focused on - a cooler. Does a camper on the truck mean I am subject to further inspection. Again, I would argue no. And this is where we as citizens allow our rights to be eroded. Co can't stop and search every vehicle coming down a logging road. Yet they seem to, and we let them. Why? Probably because their is no recourse on the side of a logging road, and resisting or saying no may set you up for further troubles. Our only resolution is a civil claim in terms of charter infringement or formal complaint against the officer which does not resolve things at all at the time.


So say you have been particpating in a regulated activity, and you answer yes to the initial question. Now the officer has a wide open door to inspect you for compliance with legislation. This means checking your licence to ensure it is valid and in your name, inspecting your firearm and ammunition to ensure it is unloaded and legal, and inspection any fish or wildlife to ensure it is the appropriate numbers, species and size. These are all under the guise of inspection.

Now what happens if during his inspection, he finds something wrong? This is when he now has to where a peace officer hat and do everything right by the courts. If he finds something wrong, the inspection is over, and it is now an investigation. Anything he does further has to comply with the charter of rights. He cannot continue inspecting as that falls into a "search" once he knows there has been a violation. The appropriate way to do things is to place you under arrest or detention for the violation he found, and continue the search as incidental to lawful arrest. In reality, this is rarely done as that means everything stops until you get your lawyer call. They don't want the headache of this so continue as if using their inspection powers. At this point though, anything further found will get tossed in court as "fruit from the poison tree" if they did not do all the appropriate steps for arrest and detention. They could also chose to end the inspection at the time they find the violation, issue you a ticket and send you on your way. No arrest needed as they are not continuing to search and basic ticket issuance time is not viewed as arbitrary detention (thinking of speeding tickets).

so what can an officer look in when he is inspecting? Again, it has got to be reasonable for the issues at hand. You are coming back from moose hunting with a moose in the back and you have given him your licence. He can't go search your glovebox as it would be an arbitrary search that's has nothing to do with the inspection at hand.


At the end of the day, if you have not been particpating in regulated activities, then they have no ability to inspect and thereby search. Many are probably aware of officers who have pushed this boundary just because you were out for a drive on a logging road. Additionally, there may be some instances when you are particpating in regulated activities, where the powers of inspection have been taken too far and stray into the realm of arbitrary search.




so that is roughly how things go. My learnings out of this - don't let the government regulate anything else (ie licence for mushroom picking), keep everything clean and out of site, and don't speak unless I am required. When asked if I have been doing any hunting, fishing or transporting wildlife/firearms, I will listen carefully to what is asked and consider my response appropriately.

[Bchunt]

Damn - I wrote that all up and Rupert Retired wrote a brief one and published it a minute or so before mine. Well done.

One note one on the campers and tents that Rupert Retired speaks to. Courts have found that those items use din regulated activities are given broad abilities to be inspected. It has been found a number of times that campers, tents etc are transitory and not generally considered "residences" in need of a warrant. They generally don't have an address, they generally are not a location where a person pays taxes and because they are located on crown land, they have a lesser expectation of privacy. Again, it comes down to choosing to participate in a regulated activity and the powers of inspection. Just because you sleep somewhere does not automatically make it a residence.

All that being said, each instance should be weighed on its own merits and it is tough to make a carte blanche statement saying all campers require warrants.

Thats enough ramblings from this keyboard warrior.

[smeegle]

At the end end of the day they are just trying to do their job as a public servant. Be respectful when asking them for their reasons for inspecting, searching, ID etc for the powers and authorities of the legislation they are working under and they will usually return the favor. It does you no good if you start playing silly bugger with enforcement professionals and giving them attitude and a hard time.

[Jelvis]

smeegle comes thru folks see above -- the beagle -- a public servant in the fields -- number 1
-- show respect what the heck, when you ask the C.O. why she's wants to inspect?
-- and search? don't lurch, stay calm --
-- for I.D. like a busy ness card? Your starting whaaaaa? Trying to turn the tables?
You basically want to know who? Iz above looking down? Your starting to play silly? Your questioning her authority ? You want her bosses name? Ahhhhh.
Jel - Playing Silly Billy Bugger with a C.O. in the field is not recommended if you want to enjoy the rest of your day ok? - keep it mello, soft and tender like jello not steak
----- Your playing Stoopid and your winning big time Hahahahahahaha Outta the car long hair! -- and so on and on ---> Go from a generality to a Felony!
---------------------------------------------------------- Keep your hands visible, at all times --------------------------------------------------------------- >

[ACE]

They carry business cards. They hand them out if asked. Ask.
If you have their business card, you're able to phone them specifically to report those shots fired at night, that elk carcass with the head/cape missing, etc.
Jelvis, your assumption that asking for ID/business card is a pissing match is wrong. Your above post is again, silly.
You may just be the extra eyes in the bush that that CO needs to make a case.

[Jelvis]

ACE I dig yer post, no problem with a business card ok? Haha, good way to know who.
ACE of Base yah hah -- it matters when and how you ask for the card, not the action of asking Haha
Jel -- Whose playing silly? -- Wisconsin -- Yer not Bronson?

[Avalanche123]

CO's must be training in Terrace right now. I've never seen so many of them in town..sorry for the thread drift..

[hoochie]

I have never, not ever once.. seen them while I was hunting.

[hparrott]

Yes they can, no they don’t need the RCMP.

Search without warrant

93

A conservation officer or constable may, without a warrant,

(a)

search a person whom he or she believes on reasonable grounds has in his or her possession any wildlife or fish killed, taken or possessed in violation of this Act or the regulations, or about to be illegally exported,

(b)

stop and search a motor vehicle, private or chartered aircraft, boat or other conveyance, in or on which he or she believes on reasonable grounds that wildlife or fish is being carried by a person, and

(c)

enter and search a shop, public market, storehouse, garage, restaurant, hotel, eating house or camp, in or on which he or she believes on reasonable grounds that wildlife or fish is located.

Seizure

94 (1)

A conservation officer or constable may seize wildlife or fish or parts of either wildlife or fish, anything referred to in paragraph (b) and anything found in, on or about a place, building or premises, or in the possession of a person, that might afford evidence of the commission of an offence under this Act, if the conservation officer or constable

(a)

finds in the possession of a person, or in, on or about a place or thing referred to in section 93, wildlife or fish that the conservation officer or constable believes on reasonable grounds was killed, taken or possessed in violation of this Act, or is about to be illegally exported, or

(b)

finds firearms, ammunition, decoys, traps, fishing rods or other devices or materials, implements or appliances for hunting or trapping wildlife or for catching fish, that the conservation officer or constable believes on reasonable grounds were held, kept or used for or in connection with a violation of this Act.

(2)

A conservation officer may seize wildlife or fish, or parts of either wildlife or fish, in a person's possession if the conservation officer believes on reasonable grounds that the right of property in that wildlife is with the government or remains in the government.

(3)

Sections 23 to 24.2 of the Offence Act do not apply in respect of wildlife or fish, or parts of either wildlife or fish, seized under this Act.

Officers empowered to stop vehicles

95 (1)

An officer may, for the purposes of this Act, stop a motor vehicle, private or chartered aircraft or boat or other vehicle to determine whether or not the occupants of the vehicle have been hunting, trapping or angling, and to obtain information about wildlife or game fish possessed by them.

(2)

A person commits an offence under subsection (1) if the person

(a)

fails to stop,

(b)

fails to identify himself or herself when requested to do so by the officer,

(c)

refuses to give information respecting hunting or fishing, or

(d)

being the driver or operator of a motor vehicle, in or on which there is wildlife or game fish or an article or device that may be used for hunting, trapping or fishing, fails, refuses or neglects to stop his or her motor vehicle when signalled or requested to stop by an officer who is in his or her uniform of office or displays his or her official badge.

After stopping you though, the officer still requires "reason to believe" that an offence has occurred prior to conducting a search

[Jelvis]

A reason, -----reasonable -- what reason did he or she pull you over for?
Like above with hparrot, still after pulling you over, requires a reason to believe that an offence ( Has occurred ) prior to conducting a search.
- This makes it clear to understand and explains the situation in a clear manner -- I can see clearly now the rain iz gone
Jel -- This is a very good explanation folks by the bird --- Clears the Water -- Blues the River -- Bridals the Falls --